HB2462 Engrossed LRB099 06604 RPS 30928 b
1		AN ACT concerning regulation.
2		Be it enacted by the People of the State of Illinois,
3		represented in the General Assembly:
4		Section 1. Short title. This Act may be cited as the
5		Authorized Electronic Monitoring in Long-Term Care Facilities
6		Act.
7		Section 5. Definitions. As used in this Act:
8		"Authorized electronic monitoring" means the placement and
9		use of an electronic monitoring device by a resident in his or
10		her room in accordance with this Act.
11		"Department" means the Department of Public Health.
12		"Electronic monitoring device" means a surveillance
13		instrument with a fixed position video camera or an audio
14		recording device, or a combination thereof, that is installed
15		in a resident's room under the provisions of this Act and
16		broadcasts or records activity or sounds occurring in the room.
17		"Facility" means an intermediate care facility for the
18		developmentally disabled licensed under the ID/DD Community
19		Care Act that has 30 beds or more, a long-term care for under
20		age 22 facility licensed under the ID/DD Community Care Act, or
21		a facility licensed under the Nursing Home Care Act.
22		"Resident" means a person receiving personal or medical
23		care, including, but not limited to, habilitation, mental

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1		health treatment, psychiatric rehabilitation, psychiatric
2		services, therapeutic services, physical rehabilitation, or
3		assistance with activities of daily living, from a facility.
4		"Resident's representative" has the meaning given to that
5		term in (1) Section 1-123 of the Nursing Home Care Act if the
6		resident resides in a facility licensed under the Nursing Home
7		Care Act or (2) Section 1-123 of the ID/DD Community Care Act
8		if the resident resides in a facility licensed under the ID/DD
9		Community Care Act.
10		Section 10. Authorized electronic monitoring. A resident
11		shall be permitted to conduct authorized electronic monitoring
12		of the resident's room through the use of electronic monitoring
13		devices placed in the room pursuant to this Act.
14		Section 15. Consent.
15		(a) Except as otherwise provided in this subsection, a
16		resident or the parent or legal guardian of a resident under
17		the age of 18 must consent in writing to the authorized
18		electronic monitoring in the resident's room. If the resident
19		has not affirmatively objected to the authorized electronic
20		monitoring and lacks the ability to understand and appreciate
21		the nature and consequences of electronic monitoring, the
22		following individuals may consent on behalf of the resident:
23		(1) a person appointed as a guardian of the resident
24		under the Probate Act of 1975;

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1		(2) a health care agent named under the Illinois Power
2		of Attorney Act;
3		(3) a resident's representative, as defined in Section
4		5 of this Act; or
5		(4) if the resident's physician determines that the
6		resident lacks the ability to understand and appreciate the
7		nature and consequences of electronic monitoring, a person
8		from the following list, in order of priority:
9		(A) the resident's spouse;
10		(B) the resident's parent; or
11		(C) the resident's adult child who has the written
12		consent of the other adult children of the resident to
13		act as the sole decision maker regarding authorized
14		electronic monitoring.
15		Prior to another person consenting on behalf of a resident
16		18 years of age or older in accordance with this Section, the
17		resident must be asked by that person, in the presence of a
18		facility employee, if he or she wants authorized electronic
19		monitoring to be conducted. For the purposes of this
20		subsection, a resident affirmatively objects when he or she
21		verbally declines authorized electronic monitoring. The
22		resident's response must be documented on the consent form.
23		(b) A resident may consent to authorized electronic
24		monitoring with any conditions of the resident's choosing,
25		including, but not limited to, prohibiting audio monitoring.
26		(c) Prior to the authorized electronic monitoring, a

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1		resident must obtain the written consent of any other resident
2		residing in the room on the consent form. Consent by a roommate
3		under this subsection authorizes the resident's use of any
4		recording obtained under this Act, as provided in Section 45 of
5		this Act. Any resident previously conducting authorized
6		electronic monitoring must obtain consent from any new roommate
7		before the resident may resume authorized electronic
8		monitoring.
9		(d) Consent may be withdrawn at any time, and the
10		withdrawal of consent shall be documented in the resident's
11		file. If a roommate withdraws consent, or a new roommate does
12		not consent to authorized electronic monitoring, and the
13		resident conducting the authorized electronic monitoring does
14		not remove or disable the electronic monitoring device, the
15		facility may turn off the device.
16		(e) If a resident who is residing in a shared room wants to
17		conduct authorized electronic monitoring and another resident
18		living in the same shared room refuses to consent to the use of
19		an electronic monitoring device, the facility shall make a
20		reasonable attempt to accommodate the resident who wants to
21		conduct authorized electronic monitoring. A facility has met
22		the requirement to make a reasonable attempt to accommodate a
23		resident who wants to conduct authorized electronic monitoring
24		when upon notification that a roommate has not consented to the
25		use of an electronic monitoring device in his or her room, the
26		facility offers to move either resident to another room that is

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1		available at the time of the request. If a facility is unable
2		to accommodate a resident due to lack of space, the facility
3		must reevaluate the request every 2 weeks until the request is
4		fulfilled.
5		Section 20. Notice to the facility.
6		(a) Authorized electronic monitoring may begin only after
7		the required consent form specified in Section 15 of this Act
8		has been completed and submitted to the facility.
9		(b) A resident shall notify the facility in writing of his
10		or her intent to install an electronic monitoring device by
11		providing a completed consent form. Notice shall be given on a
12		consent form prescribed by the Department that must include the
13		following:
14		(1) the resident's signed consent to electronic
15		monitoring or the signature of the person consenting on
16		behalf of the resident in accordance with Section 15 of
17		this Act; if a person other than the resident signs the
18		consent form, the form must document the following:
19		(A) the date the resident was asked if he or she
20		wants authorized electronic monitoring to be
21		conducted;
22		(B) who was present when the resident was asked;
23		and
24		(C) an acknowledgement that the resident did not
25		affirmatively object; and

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1		(2) the resident's roommate's signed consent or the
2		signature of the person consenting on behalf of the
3		resident in accordance with Section 15 of this Act, if
4		applicable, and any conditions placed on the roommate's
5		consent; if a person other than the roommate signs the
6		consent form, the form must document the following:
7		(A) the date the roommate was asked if he or she
8		wants authorized electronic monitoring to be
9		conducted;
10		(B) who was present when the roommate was asked;
11		and
12		(C) an acknowledgement that the roommate did not
13		affirmatively object.
14		(c) A copy of the consent form shall be placed in the
15		resident's file and a copy shall be provided to the resident.
16		(d) The Department shall prescribe the form required in
17		this Section no later than 60 days after the effective date of
18		this Act. If the Department has not prescribed such a form by
19		that date, a resident may create his or her own consent form to
20		meet the requirements of this Act until the Department has
21		prescribed the form.
22		Section 25. Cost and installation.
23		(a) A resident choosing to conduct authorized electronic
24		monitoring must do so at his or her own expense.
25		(b) If a resident chooses to install an electronic

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1		monitoring device that uses Internet technology for visual or
2		audio monitoring, that resident is responsible for contracting
3		with an Internet service provider and the facility shall make a
4		reasonable attempt to accommodate the resident, including, but
5		not limited to, allowing access to the facility's
6		telecommunications or equipment room. A facility has the burden
7		of proving that a requested accommodation is not reasonable.
8		(c) The electronic monitoring device must be placed in a
9		conspicuously visible location in the room.
10		(d) A facility may not charge the resident a fee for the
11		cost of electricity used by an electronic monitoring device.
12		Section 27. Assistance program. The Department shall
13		establish a program to assist residents receiving medical
14		assistance under Article V of the Illinois Public Aid Code in
15		accessing authorized electronic monitoring.
16		(1) The Department shall distribute up to $50,000 in funds
17		on an annual basis to residents receiving medical assistance
18		under Article V of the Illinois Public Aid Code for the
19		purchase and installation of authorized electronic monitoring
20		devices.
21		(2) Applications for funds must be made in a manner
22		prescribed by the Department and the funds shall be disbursed
23		by means of a lottery.
24		Section 30. Notice to visitors.

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1		(a) If a resident of a facility conducts authorized
2		electronic monitoring, a sign shall be clearly and
3		conspicuously posted at all building entrances accessible to
4		visitors. The notice must be entitled "Electronic Monitoring"
5		and must state, in large, easy-to-read type, "The rooms of some
6		residents may be monitored electronically by or on behalf of
7		the residents.".
8		(b) A sign shall be clearly and conspicuously posted at the
9		entrance to a resident's room where authorized electronic
10		monitoring is being conducted. The notice must state, in large,
11		easy-to-read type, "This room is electronically monitored.".
12		Section 32. Enforcement. The Department is authorized to
13		accept and investigate complaints regarding compliance with
14		the provisions of this Act following the procedures prescribed
15		in Section 3-702 of the Nursing Home Care Act and Section 3-702
16		of the ID/DD Community Care Act. The Department may assess
17		compliance with the Act during any inspection conducted in
18		accordance with Section 3-212 of the Nursing Home Care Act or
19		Section 3-212 of the ID/DD Community Care Act.
20		Section 35. Prohibited acts.
21		(a) A prospective resident or resident shall not be denied
22		admission to or discharged from a facility or be otherwise
23		discriminated against or retaliated against for consenting to
24		authorized electronic monitoring. A violation of this

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1		subsection is a business offense punishable by a fine not to
2		exceed $10,000. The State's Attorney of the county in which the
3		facility is located, or the Attorney General, shall be notified
4		by the Director of Public Health of any violations of this
5		subsection.
6		(b) A facility shall not prevent the installation of an
7		electronic monitoring device by a resident who has provided the
8		facility with consent as required in Section 15 of this Act. A
9		violation of this subsection is a petty offense punishable by a
10		fine not to exceed $1,000. The State's Attorney of the county
11		in which the facility is located, or the Attorney General,
12		shall be notified by the Director of Public Health of any
13		violations of this subsection.
14		Section 40. Obstruction of electronic monitoring devices.
15		(a) A person or entity is prohibited from knowingly
16		hampering, obstructing, tampering with, or destroying an
17		electronic monitoring device installed in a resident's room
18		without the permission of the resident or the individual who
19		consented on behalf of the resident in accordance with Section
20		15 of this Act.
21		(b) A person or entity is prohibited from knowingly
22		hampering, obstructing, tampering with, or destroying a video
23		or audio recording obtained in accordance with this Act without
24		the permission of the resident or the individual who consented
25		on behalf of the resident in accordance with Section 15 of this

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1		Act.
2		(c) A person or entity that violates this Section is guilty
3		of a Class B misdemeanor. A person or entity that violates this
4		Section in the commission of or to conceal a misdemeanor
5		offense is guilty of a Class A misdemeanor. A person or entity
6		that violates this Section in the commission of or to conceal a
7		felony offense is guilty of a Class 4 felony.
8		(d) It shall be an affirmative defense to a violation of
9		this Section that the person or facility acted with the consent
10		of the resident or the person who consented on behalf of the
11		resident in accordance with Section 15 of this Act.
12		Section 45. Access to recordings.
13		(a) A facility may not access any video or audio recording
14		created through authorized electronic monitoring without the
15		written consent of the resident or the person who consented on
16		behalf of the resident in accordance with Section 15 of this
17		Act.
18		(b) Any recording created through authorized electronic
19		monitoring may be disseminated by the resident or the person
20		who consented on behalf of the resident in accordance with
21		Section 15 of this Act to only the following:
22		(1) the facility;
23		(2) the Department;
24		(3) a representative of the Office of the State Long
25		Term Care Ombudsman;

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1		(4) a law enforcement agency;
2		(5) an attorney representing the resident; or
3		(6) any other person as required by a court.
4		(c) A violation of this Section is a Class B misdemeanor.
5		Section 50. Admissibility of evidence. Any video or audio
6		recording created through authorized electronic monitoring in
7		accordance with this Act may be admitted into evidence in a
8		civil, criminal, or administrative proceeding if the contents
9		of the recording have not been edited or artificially enhanced
10		and the video recording includes the date and time the events
11		occurred.
12		Section 55. Report. Each facility shall report to the
13		Department, in a manner prescribed by the Department, the
14		number of authorized electronic monitoring consent forms
15		received annually. The Department shall report the total number
16		of authorized electronic monitoring consent forms received by
17		facilities to the Office of the Attorney General annually.
18		Section 60. Liability. A facility is not civilly or
19		criminally liable for the inadvertent or intentional
20		disclosure of a recording made pursuant to this Act by a
21		resident or a person who consents on behalf of the resident to
22		any individual not authorized by this Act.

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1		Section 65. Rules. The Department shall adopt rules
2		necessary to implement this Act.